Passionate about IP! Since June 2003 the IPKat weblog has covered copyright, patent, trade mark, info-tech and privacy/confidentiality issues from a mainly UK and European perspective. The team is David Brophy, Birgit Clark, Merpel, Jeremy Phillips, Eleonora Rosati, Darren Smyth, Annsley Merelle Ward and Neil J. Wilkof. You're welcome to read, post comments and participate in our community. You can email the Kats here

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Thursday, 19 January 2012

The positive aspect of being chased
up a tree is that it gives you a much
better perspective on what's going
on down below ...

Since this Kat posted yesterday's piece on why, whatever one thinks of the current US copyright reform legislative proposals, it's better to engage in debate than to black out, he has received a remarkable assortment of correspondence. Some has been enthusiastically supportive; some has been encouraging, but with reservations. Some has been hostile and downright abusive. In the light of some of the comments made by readers, this Kat felt it might be a good idea to say a little bit more about his position.

Democracy is not the same thing as crowd-sourcing. Like the proposed SOPA/PIPA legislation, pretty well all legislation which is passed in the US, at both Federal and State level, is unknown to the electors, imperfectly understood even by those who do know about it, and is pressed into shape and through the legislative chamber by dark forces such as lobby groups, special interest advocates, big business and other entities. The same applies to legislation that governs taxation, healthcare, national security, the environment, employment -- you name it. So far as this Kat is aware, this phenomenon is not confined to the US but exists everywhere else too.

The absence of personal involvement on behalf of ordinary members of the public does not mean that the legislative process is undemocratic: what it means is that these are the rules by which the democratic process is played out and the conditions under which we all play them. If, as many of my correspondents confidently assert, the US legislative process through which SOPA/PIPA is passing is not democratic, would they be please send this Kat a shortlist -- and it will be a short list -- of countries which do have a democratic legislative procedures in place so that he can learn from them.

As for the argument that this legislation is being forced on the nation by a battery of avaricious IP-encrusted business barons, intent only on their own interest, in a manner that will trample on the interests of the little man, this is something that we can at least look at in quantitative terms. The big barons are lined up on both sides, are they not? Arguably the most powerful corporation on the planet, Google Inc. (would readers like to comment on its vast profitability, its unstoppable momentum and its ambivalent attitude towards the protection of its own and others' IP rights?) is ranged against the proposed legislation. So too are the other denizens of the content carrying industry -- and these are not exactly back-room businesses either. Do the content-owning sector truly and genuinely have more financial and political clout than those who shift, sift and grant access to its content?

One final observation: several of this Kat's correspondents have commented on how the objective of the Wikipedia black-out was to raise general public awareness of the possible impact of the proposed legislation, and that this objective has been achieved. Have not the media, and indeed this weblog itself, been discussing it -- which proves the point.

There is some truth in this. However, the same can be said of those who last summer looted electrical stores and carried away flat-screen monitors, hand-held devices, cellphones and the rest: they did indeed raise awareness of the fact that there are many people who have a genuine and sincere grievance against the social and economic policies of successive British governments, the mode of police interaction with youth and ethnic minorities and the effect of local planning permission on traditional shopping centres. The nature of the awareness that was raised was however temporary and superficial: it did not contribute materially to the nature or the outcome of subsequent debate because it did not address the issues. Here too, with genuine and sincere motivation, Wikipedia seems to have directed some attention to the reason for its black-out but, but far more attention to itself and to issues such as how much we have come to depend on it for our information and where we look when Wikipedia is not available.

33 comments:

Anonymous
said...

Hi

Just wanted to add that the analogy between Wikipedia and looting is massively flawed, on so many levels, not least the small matter of the fact that Wikipedia didn't do anything illegal. Wikipedia and others seemed to have made a huge and immediate impact on the progression of the bills through Congress, and so achieved their goals, at least for now.

As to whether that is a good or bad thing, I think the preceding part of your blog was quite insightful.

I think the real point being made by Wikipedia runs a little further still.

Under SOPA, if Wikipedia inadvertantly hosted apparently infriging content, or indeed even hosted an article about a computer program which could circumvent such measures, they risk being blacklisted by a handful of unelected people.

The absence of the website was keenly felt and as you say, this was not in itself relevant to the argument that SOPA is draconian and ineffective.

What does give us pause for thought however is how many websites like Wikipedia would be censored if such legislation was passed, and the subsequent impact on our right to free speech.

1) As requested, a short list: North Korea; People’s Republic of China; and Possibly Vatican City (need to check if this does or does not include Ex Cathedral pronouncements).

2) The Wikipedia blackout only affected those poor souls limited to one language. . Presumably EP Patent Practitioners are not in this category. Our neighbor’s cat also is not – she speaks both Hebrew and Siamese.

So, the KAT's stance is that it's ok for the US not to be democratic, because everyone else isn't democratic to some extent? I'm sorry, but I find it very odd that the 'but mum, all the cool kids are doing it!' defence is seriously being proposed by a legal expert! Corruption in politics is almost as inevitable as death and taxes, but that doesn't mean we should stand by and let it happen.

"Do the content-owning sector truly and genuinely have more financial and political clout than those who shift, sift and grant access to its content?" Currently, yes. Google et al probably have greater financial resources, but they don't have years of experience at buying copyright extensions, inter-corporation ties that have led to suggestions that the RICO act be applied to them, and they also have a moral stance that prevents them from simply buying new laws laws.

The Kat is right to call Google's attitude ambivalent. They have the potential to buy congressmen and push laws through, but to the best of my knowledge they have taken a moral decision not to do so. If the content industry has anything to fear, it's that Google (who define their mission as 'indexing the world's information') decides that in order to continue growing they must intervene to ensure that information is free.

Widening this out a little beyond just SOPA/PIPA, I think the mobile phone patent thicket rather than the current blackout may be the straw that breaks the camel's back for Google and makes them take an anti-IP stance. Win or lose, Google, Apple, Samsung etc. will all crunch the numbers on legal costs, delays in bringing products to market and might just come to the conclusion that the patent system in it's current form is bad for business. Throw in the large and steadily growing number on a spreadsheet somewhere in Google's HQ marked 'cost of DMCA compliance' and things might get interesting.

These comments about looting miss the point. It's irrelevant that looting is illegal while blacking out isn't. The comparison is because both looting and blacking out aren't a form of dialogue or debating. I read the post twice and can't see that the blog says anything else.

Another one here disappointed to see the Kat again draw parallels between illegal looting and legal blackouts.

And as you favour the 'explain, inform' etc etc approach, surely you should support the blackouters because the did not simply blackout their content, they linked to explanations, information and critiques of the proposed law.

Good for them. And good for anyone else who uses such methods to raise awareness and inform the general public about issues that are dear to their hearts.

you are usually and rightly critical of dubious analogies. Irrespective of your other views, how can seriously you possibly compare criminal and violent acts with someone choosing to display a particular message on their own website.

They are not comprable and to pretend they are does your arguement no good.

Drawing such comparisons does not condone such actions. A problem with our so-called democracy is that we can't debate with reference to unmentionables, such as looting, immigration, class-discrimination etc, not to mention differences in national attitudes/beliefs/history when discussing all things EU. Too many elephants in that last room, hence the vociforous criticism of the UK prior to Xmas in respect of the 'new treaty' as well as the commetns in here over the unitary patent.

The comparison made was simply one of demonstration that did not help any particular cause. The mistake with the recent looting comparion is that such looting did not have a cause. If the comparison was with the rots of the 1980s then that would be more appropriate. Such rioting was wholly brought on by our "society's" negligent attitude. The real protests against the current current system and the problems it has brought on people who did not deserve it is yet to come.

Such demonstartions, peaceful, violent, legal or otherwise only rarely have any effect. The exception being of course the 'poll tax demonstration' in the UK, which was a middle-class uprising against change in tax rules. We are all a bit more passive in the West these days: "NO MORE MINDLESS KILLING. WHEN DO WE WANT IT? Well, whenever it is convenient for you, but please don't put yourself out on my behalf"

All legislation is brought in that satisfies those with economic power. There is often balance in the lobbyists on both sides as there is in this area. But please, don't anyone tell me that Google is acting in our interests: "...and they also have a moral stance that prevents them from simply buying new laws".

For many people, Google and Apple are like a new religion. Get real, people! Such debates are mere 'coffee morning chats' of the well off in society, worrying how those new rules will affect their plans to holiday in Kenya this year.

Couple of comments:- the analogy with the looting is wrong, and seriously diminishes the argumentative value of this post

- legal process is flawed in all countries, but it is besides the point; talking about it, again, seriously weakens the value of this post.

- the issue ignored, which is the at the core, is the fundamental out-of-date and unfit-for-purpose character of copyright.

Locking away creativity behind the bars of thought crime for 70 years after the death of the author, in the name of promoting creativity, is ridiculous, inconsistent, and ineffective.

The monopoly awarded to content-distributors (and it is the extension of the monopoly into the distribution part of the value chain that is a large part of the problem), based on a paradigmatic postulated inefficiency of the market (which, by the way, has never been empirically observed) is broken down by technology.

That is, arguably, a good thing, not a bad thing. And labelling the monopoly "property" does not answer the issue.

Unless I'm mistaken, revenue for artists has gone up since Napster, and the amount of music available on the Internet has exploded. That the music industry perishes - why should we care about inefficient, monopolistic middle men?

Remind me why Hollywood needs protection, please. And if you quote any numbers, make sure to be able to back them up with real studies, performed by independent, credible institutions (good luck!).

SOPA and PIPA allow governments and special interest groups to kill free speech, without due process. That is a much greater threat to our democracy than the lobbying itself. It is a direct threat to the Internet as we know it today, as well as a process-driven way to kill the concept of "fair use".

And finally, it won't work.

But, if as you say, the real issue is copyright and its inefficiency, why do you not write about that?

The only thing American politicians need explained is that they will face a massive public backlash if they vote with their campaign contributing friends from the copyright industry over the interests over the general public.

Judging from the result of this action (much less support for this particular legislation with Senators), it has worked quite well. And this is exactly how the general public needs to act if it wants any chance against the lobbyists corrupting the political process in the United States.

The kat insists that the Wikipedia blackout can be compared with looting.

To me, that's just insane.

I would rather compare the Wikipedia blackout with a strike.

Is the kat of the opinion that workers going on strike for just one day, to defend their interests or their point of view, not stealing anything (because as far as I know access to Wikipedia is FREE), are just as bad as looters ?

Your opinion is very much respected but in this instance as the above comments have suggested, how could you possibly compare criminal and violent acts with Wikipedia blackout?It is a leap that I dont understand.

With regard to the Google point, it is true that If Google would not be affected by this bill, they would not be in the slightest bothered even if it is for the common good.

I personally think copyright is a dinosaur in a digital age. It really has to evolve and keep up with the technology.

Suppose the bill did get through and was enforced, it is only a matter of time before technology catches up and there is always a bypass; anyone who is dubious to this fact need only look at PirateBay and its resilience(1 billions visits/month and expected to grow).

What needs to be done is to change the system which would be more flexible, open and collaborative in nature. I have to admit though that I have no clue on how to bring about this YET.

The blog post seems to make the point that one needs to make a choice between debate and any form of "action" (crowd sourcing). However these two forms of trying to influence the outcome of the law making process are not mutually exclusive. There is power in arguments as there is in public opinion and economic pressure. In this case, both sides are using all means to influence the law making process. The post does not make it clear why any form of influencing power should be denied to the parties involved in a law making process.

Sorry anon 3:55, but the choosing of rioters as a group to compare the wikipedia community to is utterly offensive.

So too, frankly, is the suggestion that the little man should bow out because he/she has no place trying to upset decisions being fixed up between the "big barons".

A better comparison, IMO, would be if your local vet school was threatened with closure (cf the Riley report, 1988), but the students organised a march through the town, including some people dressed up in cuddly animal costumes, handing out flyers explaining why the economic case for closure carved out in some opaque back-room deal did not in actual reality make sense -- albeit at the cost of some roads being closed in the town centre for the afternoon.

You might think that "the nature of the awareness that was raised was however temporary and superficial: it did not contribute materially to the nature or the outcome of subsequent debate". But it caught the public imagination, the economic case was re-examined, and today the vet school is still open.

That -- rather than riots on the streets -- is a far more honest comparison for the limited disruption caused by WP's outage yesterday

Comments on this post seem to have polarised between people who accept the intellectual point that Jeremy is making with his reference to street riots, and people who are outraged by the comparison and seem to think that IPKat has committed a thought crime.

Let me try to explain: when the late, great Scottish poet Robert Burns wrote "My love is like a red, red rose", he was making a partial comparison, not a total one. He was suggesting that the lady who attracted his affection was possessed of a deep but transient beauty. He was not suggesting that she was covered with thorns and would benefit from being covered with manure from time to time.

Likewise a boring law professor who sends his students to sleep in lectures might be compared to a cure for insomnia -- but it doesn't mean that he is one.

When a comparison is made, the reader is directed to consider the point at which the comparison is relevant to its context. I was trying to make the point -- which some people understood and others missed -- that both action and inaction have the characteristic of not contributing to debate.

I’ve been trying to think of an apt analogy for Wikipedia’s actions that doesn’t involve scare tactics invoking looters, and I here it is:

A shopkeeper objects to a proposed new law that he fears may put him out of business. Could be anything –building a new bypass, or new laws on parallel importing. In protest, he closes his shop for a day, and puts up an explanation in the store window explaining why he thinks the new law is a bad idea, and why he thinks it will affect him. The idea is that anyone who visits and values his store will realize the potential effect of the new law, and be motivated to help stop it being enacted.

Seems the bill has been binned now, so the looting seems to have had the right effect. Who'd have thought tham my new free plasma TV and warm winter socks could have contributed so much to freedom of speech and democracy! Or have I misconstrued something?

Thanks heaves that Google will survive. Where else would I have found so much advertising when searching for important information?

I’m with the Kat all the way on this one, and think there’s maybe a generational factor being overlooked in all this debate. I’m old enough to remember perfectly well what life was like without the internet, and it was fine. If Wikipedia vanished forever I couldn’t care less.

I believe that taking without permission or payment the work or property of someone else is theft, and theft is wrong. It’s even more wrong if a livelihood is affected by the loss. Therefore I support an imperfect law against digital piracy if the alternative is no law at all.

I don’t remotely accept that ‘the freedom of the internet’ will be impaired if sellers - from corporates to sole traders - arm themselves with better protection against theft. Umpteen thousand years of a business model that says ‘You want it, you pay for it’ are not going to be overturned by one generation of self-important internet leeches. And for what it’s worth, while I have misgivings about UK/US extradition arrangements I think Richard O’Dwyer is a devious brat who deserves everything that’s coming to him.

IP theft via file sharing, and the lack of will to do anything meaningful about it, is a moral disgrace. No excuses, no spurious ‘freedom’ defences please - let’s just get it stopped.

The IPKat has explained that we need to take the comparison in context. It is true and I must admit it does make more sense when we think about it and thank you for that poem illustration.Excellent! Millions of people have spoken in defence of a free and open internet. I hope there would be more constructive debates about this and would like to paraphrase Bernard Shaw

“Censorship ends in logical completeness when nobody is allowed to read any books except the books that nobody reads.”

A world without the internet? How about a world without medicines, clean water, babies nappies?

If it wasn't for the garden shed brigade where would the country be now? Probably more technologically advanced and with less daft 'inventions' such as clockwork radios and ball-barrows. More investment in innovation and less whinging about the cost of paper and patents.

I do hear on the grapevine, howver, that our top Boffins & Questers (those who work on identifying uselss solutions to the world's smallest problems in their spare time after their shift at B&Q) are near to perfecting a 'plastic cup and string' network to rival the internet. Apparently, with judicious and unexpected use of a reef knot it is possibly to connect 3 or more, preferably 4, plastic cups on a single thread. And to think the Koreans are wasting their resources on graphene!

"From my perspective of working mainly with inventors and start-ups, an irritation is that government, IPO and many patent professionals don’t comprehend just how little cash SMEs have to play with, and what a sick joke the patent system has become."

Compare with:

"Umpteen thousand years of a business model that says ‘You want it, you pay for it’ are not going to be overturned by one generation of self-important internet leeches."

Don't you see the contradiction here Graham? Small UK business 'want it' (IP protection) but are not prepared to 'pay for it'. They want some other numpty to that for them.

"Let me try to explain: when the late, great Scottish poet Robert Burns wrote "My love is like a red, red rose" he was making a partial comparison.

Indeed he was, but the object chosen when making a partial comparison is important since it is central in conveying the meaning. That explains why Mr Burns did not attempt to write "My love is like a steaming pile of dung" explaining to her subsequently: "But my love, it was a partial comparison, I was pointing out how warm, soft and fragrant you are".

I wouldn’t normally reply to an Anonymous, as hiding behind anonymity is another aspect of the internet I despise. But whoever you are, you’ve given me such an easy target I might as well go for it.

(The context, for those who don’t know: brave Anonymous is quoting from my post of today and from another one of mine some weeks ago, in which I didn’t say SMEs were not prepared to pay for IP protection; only that they have difficulty paying for it.)

There is no connection between my two quotes except by 2+2=22 reasoning. Nor is there a contradiction.

If I want something but consider the price too high, I have choices. I can grit my teeth and pay; I can do without; I can seek an alternative seller who offers better value for money; I can seek an alternative purchase that offers an acceptable compromise; I can enter into a mutually beneficial partnership with someone richer than me.

In other words, I accept the ‘You want it, you pay for it’ rule of trade but have flexibility in applying it.

I would not think it was my right to steal what I wanted, or to have ‘some other numpty’ (ugh!) pay for it for me. Maybe these are options you’re familiar with, but I don’t need them and nor do most other individuals and businesses with a moral compass.

Then Graham, you must accept that those SMEs should stop whinging or invest properly in their businesses. But, no, all you do is whinge about the cost of IP and how it should be funded by govt. Going on about 'theft' all the time, wishing it was a criminal offence when it isn't. It is a civil matter and if you and other SMEs want to protect their IP then pay for it.

The old 'anonymous' criticisms are tiresome. You hate the internet? Lord knows how the internet could be so loathsome. Are you a luddite?

"For the average private inventor without pots of spare money, the cost of a patent can be massive and out of all proportion to any benefits. Broadly: • You have to pay to be recognised as the owner of your own invention. • Worse, you have to pay separately in each country in which you want to be recognised as its owner. • Worse still, you have to pay – again to each separate country – annual renewal fees after Year 5 to keep your patent in force. As an added insult, the renewal fee increases over time. • You have to pay any translation fees required by individual countries. These are not cheap, as we’ll see in due course."

From Graham's website.

You have to Pay, pay, pay. Worse still you have to keep on paying!

"In other words, I accept the ‘You want it, you pay for it’ rule of trade but have flexibility in applying it."

Flexibility how? Do you mean you don't pay, but someone else pays for you? Looks like thhe looting analogy has found a home.

The problem with relying on tradition (as Graham Barker seems to be) is that we are no longer in a traditional situation. People accept 'you want it, you pay for it' in relation to physical objects, because there is an obvious cost involved in mass producing and distributing them. This isn't true when taking about files. When duplication and distribution costs are effectively zero, people don't see why they should pay, and 'we've always done it this way' isn't sufficient argument to change people's minds.

I feel like I'm flogging a dead horse here, but just want to point out another reason that cuts to the heart of why the analogy is simply inappropriate. Jeremy wrote:"...they did indeed raise awareness of the fact that there are many people who have a genuine and sincere grievance against the social and economic policies of successive British governments, the mode of police interaction with youth and ethnic minorities and the effect of local planning permission on traditional shopping centres"And in doing so suggested that the reason the looters looted, was because they wanted to raise awareness of their 'grievance'. All the evidence shows that in fact the people who looted were opportunistic recidivists, who took advantage of a perceived break in law and order. Although the reason for their situation may (or may not) be due to government policy, they weren't looting by way of protest, they were looting because they wanted a new tv without paying for it.

As the looters' main aim wasn't to send a political message (regardless of whether or not such a message was sent), the analogy with wikipedia is simply untenable.

'Slightly amused' above made the point perfectly, in fewer words than me :-)

I'm not sure I agree that since action and inaction don't advance debate, they are not part of democracy. Likewise, that those who take action on behalf of a cause are in some way delegitimsed because that action also calls attention to them.

Look at the Kat, which has been tireless in discussing the issue of unified European patents - and not shy of saying where things are going wrong. In so doing, the site and the herd of Kats behind it have achieved a greater readership and some degree of fame. Does this nullify the discussion? Degrade it? I don't think so; it's something that can't be easily avoided and can be beneficial.

As the editor of a commercial journalistic website, I've run campaigns in the past on issues we feel strongly about. The primary reason for doing this is a strong conviction that it is a responsible, ethical and necessary part of being in journalism in the first place. But I have the freedom to use company resources in such a way because campaigning is seen by those who ultimately control the money here as good for the brand.